Judge Snuffs Out Big Tobacco Suit

The tobacco industry won a major victory Friday when a Philadelphia federal judge threw out a massive, multibillion-dollar class-action suit against the cigarette companies less than three weeks before the case was set to go to trial.

If the plaintiffs had won the case, the industry would have been required to set up a medical monitoring program for all Pennsylvania residents who were smokers as of Dec. 1, 1996, and who began smoking before age 19. That is an estimated 1 million to 2 million people, and the monitoring program could have cost the industry $2 billion or more.

Legal experts said Friday’s rulings by U.S. District Judge Clarence Newcomer was perhaps the industry’s biggest legal victory since a May 1996 decision by a federal appeals court in New Orleans throwing out a nationwide class-action suit against the industry.

After the New Orleans decision, an organization of plaintiffs’ lawyers, called the Castano group, started filing class-action suits in states around the country. The Pennsylvania case would have been the first of those to go to trial.

The plaintiffs had assembled a large trial team, including several attorneys from California. They had done considerable pretrial discovery and said in recent weeks that they had come up with damaging new information about the industry that they looked forward to presenting.

The timing of Friday’s ruling was also particularly beneficial to the cigarette companies, coming shortly before Congress is set to recess for the year.

The industry no longer faces the prospect of a long, costly trial in Philadelphia that was likely to have generated considerable negative publicity for the cigarette companies while Congress is considering the proposed national $368.5-billion tobacco settlement.

“They’ve dodged another bullet without winning on the merits,” said Columbia University Law School professor John C. Coffee, an expert on class actions. He also said the industry was wise to have settled the massive secondhand smoking case filed by flight attendants in Florida earlier this month for $300 million rather than risking an adverse jury verdict.

Earlier this week, the start of another mega-case against the industry--Texas’ suit seeking more than $8 billion in damages the state allegedly incurred treating sick smokers--was delayed until at least December when U.S. District Judge David Folsom in Texarkana told the two sides that he had to undergo surgery for prostate cancer.

The tobacco industry and its foes are still anxiously awaiting a decision from the U.S. 4th Circuit Court of Appeals on the industry’s appeal of a landmark decision earlier this year by a North Carolina judge which held that the federal Food and Drug Administration has jurisdiction to regulate the industry.

Coffee said he was surprised at Newcomer’s decision because the judge had certified the class just two months ago, after initially rejecting the suit and requiring the plaintiffs to modify it. After the plaintiffs scaled back the suit, dropping their claim for money damages, the judge certified the class.

Tobacco lawyers asked the judge to reconsider that decision, and Friday he went their way. “Newcomer has flipped and flopped back and forth,” Coffee said.

Newcomer issued two lengthy rulings in the industry’s favor Friday in the case called Barnes vs. the American Tobacco Co. In the first, he reversed his earlier decision on granting class-action status.

“In sum,” the judge wrote, “the court finds that the individual issues implicated by the facts and circumstances of this preclude continuing this case as a class action. When the court looks down the road to determine how this case would be tried, it is obvious that the litigation is unmanageable as a class action and would ultimately splinter into individual issues, which would have to be tried separately.”

In particular, the judge stressed that “whether or not an individual is addicted is a highly individualistic inquiry . . . which cannot be resolved on a class-wide basis.”

In his second ruling, Newcomer threw out the individual claims of the six smokers who would have been the class representatives. He said the claims of five of the smokers were barred on statute-of-limitation grounds, saying in essence they had waited too long to sue. As to the other smoker, the judge said the medical monitoring she was seeking was no different from that recommended for anyone her age.

The cigarette companies were jubilant. “This is an outstanding victory. It reflects what we have been saying all along”--that cigarette cases are not suitable for class actions, said John Mulderig, a lawyer for Philip Morris Cos.

This ruling, combined with the New Orleans decision and others, “sends the clear message that the courts see no place in our legal system for these lawsuits,” added Daniel W. Donahue, deputy general counsel for R.J. Reynolds Tobacco Co.

Dianne M. Nast of Lancaster, Pa., one of the lead plaintiffs’ lawyers, said she was stunned and would immediately file an appeal.

Philadelphia attorney Stephen A. Sheller, who was in the midst of deposing an R.J. Reynolds scientist when the rulings were issued, said he was deeply troubled by Newcomer’s decisions.

“This is typical of the abysmal failure of the justice system to deal with this industry,” Sheller said. “This was a simple case. How could a court say it couldn’t manage a trial on whether the tobacco industry intentionally addicts people?”

Sheller said he was particularly troubled by the fact that he would not be able to show a jury a videotaped deposition on Oct. 9 of one of the defense’s expert witnesses in the case: Dr. Emanuel Rubin, a Philadelphia pathologist and a medical professor.

Although he had been hired by the defendants to discuss the work of the Council for Tobacco Research, the industry’s research arm, Rubin had authored two textbooks that contained numerous damaging statements about smoking. Over the objections of defense lawyers, Sheller had Rubin read into the record several of those passages.

For example, in his 1994 book, “Pathology,” Rubin wrote: “Smoking is the single largest preventable cause of death in the United States with direct health costs to the economy of at least $25 billion a year. About 350,000 deaths a year, one sixth of the total mortality in the United States, occur prematurely because of smoking.”

Rubin also said that 90% of smokers get emphysema, that smoking was the cause of various types of cancer, precipitated heart attacks, increased the risk for second heart attacks “and diminishes survival after a heart attack among those who continue to smoke.”

When Sheller asked Rubin if he still agreed with everything that is in his textbook, Rubin responded: “Pure poetry.” Sheller and his colleagues said they thought lawyers in other cases would try to make use of the deposition.

Another member of the Pennsylvania plaintiffs’ trial team, John Shubb of Philadelphia, said he thought that Friday’s decision was yet another reason to push for a national settlement.

“It’s not as easy to beat Big Tobacco as some of the zealots think,” Shubb said.